Maze v. Wells Fargo Bank, N.A.

ROBERT MAZE and JESSICA BUTLER PLAINTIFFSv.WELLS FARGO BANK, N.A., and IN A SNAP INSPECTIONS, LLC DEFENDANTS

MEMORANDUM OPINION AND ORDER

JOSEPH
H. MCKINLEY, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT

This
matter is before the Court on motions by Defendants, Wells
Fargo Bank, N.A., and In a Snap Inspections, LLC, to dismiss
the complaint pursuant to Fed.R.Civ.P. 12(b)(6) [DN 9, DN
10]. Fully briefed, this matter is ripe for decision.

I.
STANDARD OF REVIEW

Upon a
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), a court “must construe the
complaint in the light most favorable to plaintiff, ”
League of United Latin Am. Citizens v. Bredesen, 500
F.3d 523, 527 (6th Cir. 2007) (citation omitted),
“accept all well-pled factual allegations as true[,
]” id., and determine whether the
“complaint states a plausible claim for relief[,
]” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). Under this standard, the plaintiff must provide the
grounds for his or her entitlement to relief which
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). A plaintiff satisfies this standard only
when he or she “pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. A complaint falls short if it pleads facts
“merely consistent with a defendant's
liability” or if the alleged facts do not “permit
the court to infer more than the mere possibility of
misconduct.” Id. At 678, 679. Instead, the
allegations must “‘show[ ] that the pleader is
entitled to relief.'” Id. at 679 (quoting
Fed.R.Civ.P. 8(a)(2)). It is against this standard the Court
reviews the following facts.

II.
BACKGROUND

Plaintiff,
Robert Maze, executed a promissory note and mortgage on the
subject property in 2011 with Defendant, Wells Fargo Bank.
Plaintiff, Jessica Butler, is not a party to either the note
or the mortgage but occupied the real property with Maze.
Maze defaulted on the mortgage loan by failing to make
payments, and Wells Fargo initiated the foreclosure action in
Hardin Circuit Court on October 10, 2013. Maze failed to
appear and answer the foreclosure complaint and failed to
respond to a subsequent motion for the court to enter a
judgment. As a result, the Hardin Circuit Court entered a
judgment and order of sale on February 28, 2014. Pursuant to
the judgment and order of sale, the property was scheduled
for a sale by the master commissioner on April 3, 2014. The
day before the scheduled sale, Maze filed a bankruptcy
petition which resulted in an automatic stay of the
foreclosure proceedings, including the scheduled sale of the
property. The bankruptcy proceeding was subsequently
dismissed in January of 2016. With the automatic say lifted,
on February 12, 2016, the Hardin Circuit Court ordered the
master commissioner to reschedule the sale of the property.
The judicial sale was conducted on April 14, 2016, at which
time Wells Fargo purchased the property. The master
commissioner filed his report that day, and Maze did not file
any objection. No objections having been filed, on May 3,
2016, the Hardin Circuit Court entered an order confirming
the judicial sale of the property. See Wells Fargo Bank
v. Robert R. Maze, No. 13-CI-00168 (Foreclosure
Proceedings); In Re Robert R. Maze, No. 14-31304-THF
(Bankr. W.D. Ky.)(bankruptcy proceedings).

Plaintiffs
allege that “[a]t some point in 2016, before it sought
a writ of possession [August 17, 2016] and before it had any
right to enter the subject property, Wells Fargo retained In
a Snap to act on its behalf and to provide collection
services regarding the home subject to foreclosure.”
(Complaint at ¶¶ 10-11.) Plaintiffs further allege
that Wells Fargo and In a Snap “broke into the
property, ransacked it and stole very valuable music
equipment and other personal property, ” “damaged
property that was not stolen, ” and “destroyed
Mr. Maze's birth certificate.” (Id. at
¶¶ 16, 19, 20.) Additionally, Plaintiffs allege
that an In a Snap employee later advertised the stolen
property for sale online. (Id. at ¶ 18.)

Plaintiffs
filed this action on October 6, 2016, against Wells Fargo and
In a Snap. Plaintiffs seek to recover monetary damages
against In a Snap Inspections under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §§
1692-1692p, stemming from the removal of Plaintiffs'
property from the residence and damage to other personal
property. See 15 U.S.C. § 1692d(1), 15 U.S.C.
§ 1692f(1), and 15 U.S.C. § 1692f(6). In addition
to the federal claim, Plaintiffs assert four additional state
law claims against both Wells Fargo and In a Snap:
intentional trespass, negligent trespass, conversion, and
negligence/gross negligence. Plaintiffs also assert a state
law claim for breach of contract against Wells Fargo.

III.
DISCUSSION

A.
FDCPA Claim

In a
Snap moves to dismiss the FDCPA claim arguing that Plaintiffs
have not alleged any facts showing that In a Snap is
“debt collector” as defined by the FDCPA; that
the principal purpose of In a Snap's business is the
collection of consumer debt; or that In a Snap attempted to
collect a debt from Plaintiffs under the circumstances of
this case.

The
FDCPA prohibits debt collectors from engaging in
“abusive, deceptive, and unfair debt collection
practices” towards debtors. See 15 U.S.C.
§ 1692. Under the FDCPA, “‘(1) plaintiff
must be a consumer as defined by the Act; (2) the debt must
arise out of transactions which are “primarily for
personal, family or household purposes; (3) defendant must be
a debt collector as defined by the Act; and (4) defendant
must have violated § 1692e's
prohibitions.'” Labron v. Nationstar Mortgage,
LLC, 2016 WL 2993622, *2 (W.D. Ky. May 23, 2016)(quoting
Wallace v. Washington Mut. Bank, F.A., 683 F.3d 323,
326 (6th Cir. 2012) (internal quotation marks omitted)).
Liability under the FDCPA can only attach to those who meet
the statutory definition of a “debt collector”
and engage in “debt collection.” 15 U.S.C. §
1692(a). The term “debt collector” means any
person who uses any instrumentality of interstate commerce or
the mails in any business the principal purpose of which is
the collection of any debts, or who regularly collects or
attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another. 15 U.S.C.A. §
1692a(6). See Glazer v. Chase Home Finance LLC, 704
F.3d 453 (6th Cir. 2013).

Under
the facts alleged in this matter, In a Snap neither qualifies
as a debt collector, nor does In a Snap's behavior
constitute debt collection.

First,
In a Snap does not qualify as a debt collector under the
facts of the complaint. Plaintiffs make no factual averment
suggesting a nexus between the conduct of In a Snap and any
debt Plaintiffs' owed. Plaintiffs do not allege that In a
Snap demanded payment for any debt, notified Plaintiffs of
the pendency of any debt or legal action, or communicated to
Plaintiffs that they owed an outstanding debt to either
Defendant. Instead, Plaintiffs allege that In a Snap broke
into the property, ransacked it and stole and/or damaged very
valuable music equipment and other personal property. The
only support for Plaintiffs' argument that In a Snap was
acting as a debt collector is Plaintiffs' conclusory
allegation that “Wells Fargo retained In a Snap to act
on its behalf and to provide collection services regarding
the home subject to foreclosure.” ...

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